B-116249, SEPTEMBER 10, 1953, 33 COMP. GEN. 109

B-116249: Sep 10, 1953

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THE AWARD OF A CONTRACT TO A HIGHER BIDDER ON THE BASIS OF A PRODUCT ON THE QUALIFIED PRODUCTS LIST INSTEAD OF TO A LOW BIDDER MEETING THE BID SPECIFICATIONS IS ILLEGAL AND NECESSITATES CANCELLATION OF THE CONTRACT. A PROVISION IN THE STANDARD SPECIFICATIONS ACCOMPANYING AN INVITATION FOR BIDS WHICH RESERVED THE RIGHT TO THE GOVERNMENT TO REJECT BIDS ON UNQUALIFIED PRODUCTS IN THE PROCUREMENT OF QUALIFIED PRODUCTS IS MERELY AN IMPLEMENTING PROVISION WHICH CAN BECOME OPERATIVE ONLY IF IT IS SPECIFICALLY PROVIDED IN THE INVITATION THAT THE PROCUREMENT IS ONE WHICH REQUIRES THE FURNISHING OF A QUALIFIED PRODUCT. 1953: REFERENCE IS MADE TO A LETTER DATED JULY 28. THE REFERRED-TO INVITATION FOR BIDS WAS ISSUED MAY 14.

B-116249, SEPTEMBER 10, 1953, 33 COMP. GEN. 109

CONTRACTS - AWARDS - TO OTHER THAN LOWEST BIDDER - QUALIFIED PRODUCTS LIST WHERE AN INVITATION FOR BIDS DOES NOT SPECIFICALLY REQUEST THE FURNISHING OF A QUALIFIED PRODUCT, THE AWARD OF A CONTRACT TO A HIGHER BIDDER ON THE BASIS OF A PRODUCT ON THE QUALIFIED PRODUCTS LIST INSTEAD OF TO A LOW BIDDER MEETING THE BID SPECIFICATIONS IS ILLEGAL AND NECESSITATES CANCELLATION OF THE CONTRACT. A PROVISION IN THE STANDARD SPECIFICATIONS ACCOMPANYING AN INVITATION FOR BIDS WHICH RESERVED THE RIGHT TO THE GOVERNMENT TO REJECT BIDS ON UNQUALIFIED PRODUCTS IN THE PROCUREMENT OF QUALIFIED PRODUCTS IS MERELY AN IMPLEMENTING PROVISION WHICH CAN BECOME OPERATIVE ONLY IF IT IS SPECIFICALLY PROVIDED IN THE INVITATION THAT THE PROCUREMENT IS ONE WHICH REQUIRES THE FURNISHING OF A QUALIFIED PRODUCT.

COMPTROLLER GENERAL WARREN TO THE SECRETARY OF THE AIR FORCE, SEPTEMBER 10, 1953:

REFERENCE IS MADE TO A LETTER DATED JULY 28, 1953, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE, FORWARDING, IN RESPONSE TO OFFICE LETTER OF JULY 17, 1953, B-116249, TO YOU, A REPORT, TOGETHER WITH PERTINENT DOCUMENTS, IN CONNECTION WITH THE PROTEST OF HEYER PRODUCTS COMPANY, INC., AGAINST THE AWARD OF A CONTRACT FOR RECTIFIERS PURSUANT TO IFB 109-603-53- 166B.

THE REFERRED-TO INVITATION FOR BIDS WAS ISSUED MAY 14, 1953, BY THE WARNER ROBINS AIR MATERIEL AREA, ROBINS AIR FORCE BASE, GEORGIA, REQUESTING BIDS FOR FURNISHING, AMONG OTHER ITEMS 741 TYPE B-8 PORTABLE RECTIFIERS UNDER ITEM NO. 1, THE RECTIFIERS OFFERED UNDER THAT ITEM TO BE IN ACCORDANCE WITH CERTAIN SPECIFICATIONS, INCLUDING MIL-R-7206, DATED AUGUST 27, 1951, MIL-P-6457A, DATED MAY 13, 1952, AND EXHIBIT WCE 209A ( APPROVAL OF FIRST ARTICLE TEST REPORT). BY AMENDMENTS 1, 2 AND 3 TO THE ORIGINAL INVITATION THE QUANTITY UNDER ITEM 1 WAS INCREASED TO 744 RECTIFIERS AND THE BID OPENING DATE WAS EXTENDED FROM JUNE 3 TO 15, 1953. ON PAGE 1 OF THE BID SCHEDULE PROSPECTIVE BIDDERS WERE ADVISED THAT BIDS UNDER THE PROCUREMENT WERE RESTRICTED TO SMALL BUSINESS CONCERNS AND THE AWARDS WOULD BE MADE TO THE SMALL BUSINESS CONCERN SUBMITTING THE LOWEST RESPONSIBLE BID CONFORMING TO THE INVITATION, PRICE AND OTHER FACTORS CONSIDERED. PROSPECTIVE BIDDERS ALSO WERE ADVISED THAT BIDS SUBMITTED AS A RESULT OF THE INVITATION WOULD BE EVALUATED IN ACCORDANCE WITH THE REGULATIONS "TO FORMAL ADVERTISING.' PARAGRAPH M ON PAGE 6 OF THE INVITATION PROVIDED THAT FACILITIES FOR PERFORMANCE OF THE QUALIFICATION TESTS REQUIRED BY THE SPECIFICATIONS SHOULD BE PROVIDED BY THE SUCCESSFUL BIDDER IN ACCORDANCE WITH EXHIBIT WCE-209 AND THAT TEST REPORTS, IN TRIPLICATE, SHOULD BE FURNISHED BY THE CONTRACTOR FOR APPROVAL BY THE CONTRACTING OFFICER PRIOR TO FABRICATION OF THE REMAINING ARTICLES UNDER THE CONTRACT. A FIRST ARTICLE TEST REPORT WAS CALLED FOR WITHIN 60 DAYS AND IT WAS PROVIDED THAT DELIVERY OF THE SPECIFIED QUANTITY WOULD BE COMPLETED "WITHIN 300 DAYS AFTER GOVERNMENT APPROVAL OF FIRST ARTICLE TEST REPORTS.' BIDDERS WERE ADVISED THAT IN THE EVENT THEY WERE TO MEET THIS SCHEDULE THEY MIGHT, WITHOUT PREJUDICE TO EVALUATION OF THE BIDS, SET FORTH THE DELIVERY SCHEDULE THEY WERE PREPARED TO MEET, PROVIDED IN NO EVENT SHOULD ANY DELIVERY SCHEDULE EXTEND BEYOND 90 DAYS AFTER DATE OF RECEIPT OF AWARD AND 300 DAYS AFTER GOVERNMENT APPROVAL OF FIRST ARTICLE TEST REPORT, RESPECTIVELY. IN THE EVENT THE FIRST ARTICLE TEST REPORT REQUIREMENT WAS WAIVED PRIOR TO AWARD, BIDDERS WERE ADVISED THAT DELIVERY WOULD START WITHIN 60 DAYS AND BE COMPLETED WITHIN 360 DAYS AFTER RECEIPT OF AWARD. PARAGRAPH 6.2 OF SPECIFICATION MIL-R-7206, DATED AUGUST 27, 1951, PROVIDES, INTER ALIA, THAT IN THE PROCUREMENT OF PRODUCTS REQUIRING QUALIFICATION THE RIGHT IS RESERVED TO REJECT BIDS ON PRODUCTS THAT HAVE NOT BEEN SUBJECTED TO THE REQUIRED TESTS AND FOUND SATISFACTORY FOR INCLUSION ON A QUALIFIED PRODUCTS LIST.

IT IS STATED IN THE LETTER OF JULY 28, 1953, THAT TYPE B-8 RECTIFIERS WERE DESIGNATED " QUALIFIED PRODUCTS" FOR LISTING ON A QUALIFIED PRODUCTS LIST PURSUANT TO THE PROVISIONS OF SECTION 2-502 OF THE ARMED SERVICES PROCUREMENT REGULATION AND THAT " INDUSTRY WAS CIRCULARIZED ON NOVEMBER 25, 1951, IN ACCORDANCE WITH 2-503.1 OF THE SAME REGULATIONS.' IT IS STATED FURTHER THAT AS A RESULT OF IFB 33-600 524-364, ISSUED NOVEMBER 6, 1951, THE MCCOLPIN-1CHRISTIE CORPORATION WAS AWARDED CONTRACT NO. AF 33/600/-8308 FOR FOUR TYPE B-8 RECTIFIERS ON DECEMBER 31, 1951, AS A BIDDER HAVING A FAVORABLE FACILITY CAPABILITY REPORT, THE SAID CONTEXT PROVIDING FOR FIRST ARTICLE ACCEPTANCE TEST AND ACCEPTANCE BY THE GOVERNMENT, SINCE THE INDUSTRY HAD NOT, AT THE TIME OF ISSUANCE OF THE INVITATION, BEEN NOTIFIED OF DESIGNATION OF THIS RECTIFIER AS A " QUALIFIED DUCT.' ALSO, IT IS STATED THAT IFB 33-600-52-537 WAS ISSUED ON JANUARY 9, 1952, FOR 22 TYPE B-8 RECTIFIERS AND THAT CONTRACT AF 33/600/- 16165 WAS AWARDED TO MCCOLPIN-1CHRISTIE CORPORATION ON APRIL 21, 1953, WHICH "ALSO PROVIDED FIRST ARTICLE ACCEPTANCE TEST BY THE GOVERNMENT, INASMUCH AS THERE WERE NO PRODUCERS ON THE QUALIFIED PRODUCTS LIST.'

IT IS REPORTED FURTHER THAT THE MCCOLPIN-1CHRISTIE CORPORATION SUBMITTED THE FIRST ARTICLE FOR TESTING UNDER THE LAST-MENTIONED CONTRACT DURING APRIL 1952 WHICH, AFTER BEING TESTED AND EVALUATED, WAS REJECTED ON MARCH 5, 1953; THAT AN ARTICLE WAS RESUBMITTED FOR TEST, AND ON MAY 25, 1953, THE CONTRACTOR WAS ADVISED BY LETTER FROM THE WRIGHT AIR DEVELOPMENT CENTER THAT A DETERMINATION HAD BEEN MADE TO INITIATE ADMINISTRATIVE ACTION WITH A VIEW TO LISTING THE TYPE B-8 RECTIFIER, IN ACCORDANCE WITH BASIC SPECIFICATION MIL-R-7206, PROVIDED THE PRODUCT WAS MODIFIED AS INDICATED IN THE LETTER; THAT ON THE SAME DATE THE COMMANDER, WARNER ROBINS AIR MATERIEL AREA, WAS ADVISED TO THE SAME EFFECT; AND THAT ON JUNE 18, 1953, A MESSAGE WAS SENT BY THE CENTER TO THE COMMANDER RECOMMENDING AN UNQUALIFIED PRODUCTION RELEASE UNDER CONTRACT AF 33/600/-16165, AND STATING "THAT ADMINISTRATIVE ACTION REQUIRED FOR FORMAL ACTION ON CONTRACTOR'S PRODUCT FOR INCLUSION ON THE QUALIFIED PRODUCTS LIST WAS CONTINUING.'

FINALLY, IT IS STATED IN THE LETTER OF JULY 28, 1953, THAT IFB 33 600-52- 1021, ISSUED MAY 13, 1952, RESULTED IN THE AWARD ON JUNE 30, 1952, OF CONTRACT AF 33/600/-21407 FOR 1,022 TYPE B-8 RECTIFIERS TO HEYER PRODUCTS COMPANY, INC., AS THE LOW BIDDER HAVING A FAVORABLE FACILITY CAPABILITY REPORT; THAT THIS CONTRACT PROVIDED THAT FACILITIES FOR PERFORMANCE OF THE QUALIFICATION TESTS OF THE FIRST ARTICLE REQUIRED BY THE SPECIFICATIONS SHOULD BE PROVIDED BY THE SUCCESSFUL BIDDER; THAT PROVISION WAS ALSO MADE FOR TEST REPORTS FOR THE FIRST ARTICLE TO BE FURNISHED BY THE CONTRACTOR FOR APPROVAL WITHIN 75 DAYS AFTER DATE OF AWARD AND PRIOR TO FABRICATION OF THE REMAINING ARTICLES UNDER THE CONTRACT; AND THAT TEST DATA REPORTS AS REQUIRED OF THE CONTRACTOR HAD NOT BEEN COMPLETED AS OF JUNE 30, 1953, THE DATE OF THE AWARD OF THE PRESENT CONTRACT TO THE MCCOLPIN-1CHRISTIE CORPORATION.

ALTHOUGH HEYER PRODUCTS COMPANY, INC., AND THE RAPID ELECTRIC COMPANY, THE SECOND LOW BIDDER, SUBMITTED LOWER BIDS FOR FURNISHING THE RECTIFIERS COVERED BY THE PRESENT INVITATION, THE CONTRACTING OFFICER IS REPORTED TO HAVE BEEN GUIDED BY THE FOLLOWING FACTORS IN MAKING THE AWARD TO THE MCCOLPIN-1CHRISTIE CORPORATION:

A. THE KNOWLEDGE THAT LOW BIDDER, HEYER PRODUCTS COMPANY, HAD NOT SUBMITTED TEST DATA REPORTS ON FIRST ARTICLE;

B. THE KNOWLEDGE THAT THIRD LOW BIDDER HAD BEEN RECOMMENDED BY WRIGHT AIR DEVELOPMENT CENTER FOR UNQUALIFIED PRODUCTION RELEASE FOR THE TYPE B-8 RECTIFIER, AND WAS AWAITING ONLY COMPLETION OF ADMINISTRATIVE ACTION FOR INCLUSION ON THE QUALIFIED PRODUCTS LIST;

C. THE STATEMENT FROM THE DIRECTOR OF SUPPLY AND SERVICES THAT EFFICIENCY AND PRODUCTION THROUGHOUT ALL DEPOTS WERE SERIOUSLY AFFECTED BY THE CRITICAL SHORTAGE OF THE TYPE B-8 RECTIFIER; AND

D. THE DIFFERENCE IN COST BETWEEN LOW BIDDER AND THE MCCOLPIN 1CHRISTIE CORPORATION OF ONLY APPROXIMATELY 2.7 PERCENT.

THE ATTORNEY FOR HEYER PRODUCTS COMPANY, INC., CONTENDS THAT THE REPORT OF JULY 28, 1953, FROM THE ASSISTANT SECRETARY OF THE AIR FORCE TO THIS OFFICE CONTAINS THREE MISREPRESENTATIONS OF FACT WHICH GO TO THE HEART OF THE PROBLEM. THE SAID MISREPRESENTATIONS ARE SET OUT IN A LETTER OF AUGUST 4, 1953, AS FOLLOWS:

1. THAT THE SUBJECT 744 UNIT RECTIFIER CONTRACT IS A "QUALIFIED PRODUCT" PROCUREMENT IS A MISSTATEMENT.

2. THAT MCCOLPIN-1CHRISTIE CO., THE THIRD HIGH BIDDER, HAD THE ONLY "QUALIFIED PRODUCT" IS A MISSTATEMENT.

3. THAT THERE IS GREAT URGENCY IN THE PROCUREMENT OF THE 744 RECTIFIER IS A MISSTATEMENT.

IN SUPPORT OF NO. 1, THE ATTORNEY REFERS TO THE PROVISIONS OF THE INVITATION WITH REFERENCE TO FORMAL ADVERTISING AND ATTENTION IS CALLED TO THE FACT THAT THE INVITATION PROPER CONTAINED NO INTIMATION THAT THE CONTRACT TO BE AWARDED ON THE BASIS THEREOF WAS TO BE A CONTRACT FOR FURNISHING A PRODUCT WHICH HAD BEEN QUALIFIED AND PLACED ON A QUALIFIED BIDDERS' LIST. IT IS STATED THAT THE PAST CONDUCT OF THE AIR FORCE IN PROCURING SIMILAR ITEMS OF EQUIPMENT BELIES ITS CONTENTION THAT PARAGRAPH 6.2 OF SPECIFICATION MIL-R-7206 WAS INTENDED TO BE APPLICABLE TO THIS PROCUREMENT. AS EXAMPLES, THE ATTORNEY CALLS ATTENTION TO IFB 33-038-51- 1382, ISSUED JANUARY 10, 1951, IFB 33-600-524-364, ISSUED ON NOVEMBER 6, 1951, AND TO IFB 33-600-52-537, ISSUED ON JANUARY 9, 1982, ALL BY HEADQUARTERS, AIR MATERIEL COMMAND, PROCUREMENT DIVISION, SERVICES SECTION, WRIGHT-PATTERSON AIR FORCE BASE. THE FIRST TWO OF THESE INVITATIONS CALLED FOR BIDS FOR FURNISHING QUALIFIED PRODUCTS BUT SUCH REQUIREMENT WAS LATER ELIMINATED FROM THE INVITATION PROPER BY AMENDMENTS APPARENTLY WITHOUT CHANGING THE GENERAL SPECIFICATIONS RESERVING TO THE GOVERNMENT THE RIGHT TO REJECT BIDS ON PRODUCTS THAT HAD NOT BEEN FOUND SATISFACTORY FOR INCLUSION ON THE QUALIFIED PRODUCTS LIST PRIOR TO AWARD. IN ADDITION TO THE FOREGOING, THERE WAS BROUGHT TO THE ATTENTION OF THIS OFFICE IFB 109-603-53-252, ISSUED AS LATE AS JUNE 1, 1953, AT THE ROBINS AIR FORCE BASE, WHICH ORIGINALLY CALLED FOR FIRST ARTICLE TEST REPORTS WITHIN 120 DAYS AFTER DATE OF RECEIPT OF AWARD BUT THE INVITATION WAS SUBSEQUENTLY AMENDED BY AMENDMENT 6, DATED AUGUST 7, 1953, TO INCLUDE A CLAUSE PROVIDING FOR THE FURNISHING OF QUALIFIED PRODUCTS. SUMMARIZING, THE ATTORNEY FOR HEYER PRODUCTS COMPANY, INC., MAKES THE FOLLOWING OBSERVATION:

THUS, IT WOULD SEEM CLEAR THAT WHEN THE AF INTENDS TO INITIATE A " QUALIFIED PRODUCT" PROCUREMENT FOR RECTIFIERS, IT SO STATES IN THE FORM 31 SCHEDULE MAKING UP THE SOLICITATION, AND THAT THE AF DOES NOT AND NEVER DID RELY UPON PARAGRAPH 6.2 OF THE SPECIFICATION TO CONVEY SUCH NOTICE. INDEED, IN PARAGRAPH 6.2 OF SPECIFICATION MIL-7206, AND THE OTHER SPECIFICATIONS IN WHICH THAT PARAGRAPH APPEARS, THE LANGUAGE SIMPLY INDICATES A PROCUREMENT OF THE ITEM MIGHT BE A ,QUALIFIED PRODUCT" PROCUREMENT, LEAVING IT TO THE SOLICITATION FOR BIDS ITSELF TO STATE WHETHER SUCH IS THE CASE IN FACT.

RELATIVE TO NO. 2, THE ATTENTION OF THIS OFFICE IS CALLED TO THE FACT THAT THE 744 RECTIFIERS WERE TO BE BUILT IN ACCORDANCE WITH SPECIFICATIONS MIL-R-7206, DATED AUGUST 27, 1951, AND MIL-P 6457A, DATED MAY 13, 1952, AND THAT PARAGRAPH 4.3.1 OF MIL-P 6457A REQUIRES THAT RECTIFIER UNITS THAT HAVE PREVIOUSLY PASSED A TEST UNDER PRIOR SPECIFICATION MUST BE RETESTED TO PASS THAT SPECIFICATION. IT IS URGED THAT, SINCE THE UNIT OFFERED BY THE MCCOLPIN-1CHRISTIE CORPORATION WAS BUILT PURSUANT TO MIL-R-7206, IT COULD NOT BE REGARDED AS A QUALIFIED PRODUCT FOR THE INSTANT PROCUREMENT WHICH INVOLVED COMPLIANCE NOT ONLY WITH THAT SPECIFICATION BUT WITH A LATER SPECIFICATION INVOLVING DIFFERENT REQUIREMENTS. IT IS CLAIMED ALSO THAT THE SO-CALLED QUALIFICATION IS NO MORE THAN A FINAL PRODUCTION RELEASE UNDER CONTRACT NO. AF-33/600/-16165 FOR 22 RECTIFIERS AWARDED TO THE MCCOLPIN 1CHRISTIE CORPORATION MORE THAN 15 MONTHS AGO AND NOT A QUALIFICATION OF THE PRODUCT WITHIN THE PURVIEW OF THE SPECIFICATION APPLICABLE TO THE PRESENT PROCUREMENT.

AS TO THE THIRD GROUND FOR THE PROTEST, IT IS CLAIMED THAT AIR FORCE OFFICIALS WERE FULLY AWARE ON JUNE 26, 1953, THAT HEYER WAS ENGAGED IN OBTAINING A FINAL TEST APPROVAL FROM UNITED STATES TESTING LABORATORIES IN ORDER TO COMMENCE PRODUCTION UNDER THE CONTRACT AWARDED ON JUNE 30, 1952; THAT THE SLIGHTEST INVESTIGATION WOULD HAVE REVEALED THAT HE WAS PREPARED TO DELIVER RECTIFIERS AT AN ACCELERATED RATE FAR BEYOND THAT PROPOSED IN THE INVITATION; AND THAT THE DELINQUENCY ON HIS PRIOR CONTRACT WAS ONLY A FRACTION OF THAT OF MCCOLPHIN-1CHRISTIE CORPORATION UNDER ITS CONTRACT.

IN LETTER DATED AUGUST 18, 1953, THE ATTORNEY FOR THE RAPID ELECTRIC COMPANY STATES THAT THE RECTIFIERS COVERED BY ITEM 1 OF THE PRESENT PROCUREMENT ARE SUBSTANTIALLY SIMILAR TO THE ITEMS PREVIOUSLY MANUFACTURED AND SOLD BY THAT COMPANY TO THE GOVERNMENT UNDER CONTRACT AF 33/038/- 27372; THAT THE ITEMS COVERED BY THE SAID CONTRACT WERE TESTED, EVALUATED, QUALIFIED AND APPROVED BY THE AIR FORCE; AND THAT A REPORT BY THE UNITED STATES TESTING COMPANY DATED AUGUST 8, 1952, IS SUFFICIENT EVIDENCE OF THAT CONTRACTOR'S ABILITY TO PRODUCE THE ITEMS CALLED FOR IN THE PRESENT PROCUREMENT. ALSO, THERE HAS BEEN PRESENTED A COPY OF A LETTER FROM THE NEW YORK REGIONAL OFFICE, EASTERN AIR PROCUREMENT DISTRICT, WHICH REFERS TO A LETTER RECEIVED BY THAT DISTRICT ON FEBRUARY 14, 1953, FROM HEADQUARTERS, WARNER ROBINS AIR MATERIEL AREA, REVEALING THAT THE PRODUCT OFFERED BY THAT COMPANY WAS APPROVED FOR RELEASE UNDER CONTRACT NO. AF 33/038/-27372.

THE INVITATION FOR BIDS IN THE PRESENT PROCUREMENT DEFINITELY ADVISED PROSPECTIVE BIDDERS THAT AWARD WOULD BE MADE IN ACCORDANCE WITH THE FORMAL ADVERTISING REQUIREMENTS OF SECTION 3 (B) OF THE ARMED SERVICES PROCUREMENT ACT OF 1947, 62 STAT. 21, 23. THE FACTS AND EVIDENCE OF RECORD FAIL TO ESTABLISH THAT HEYER'S LOW BID FAILED TO CONFORM WITH THOSE REQUIREMENTS OR THAT, DISREGARDING HEYER'S BID, THE NEW LOW BID OF RAPID ELECTRIC COMPANY WOULD NOT QUALIFY FOR ACCEPTANCE UNDER SUCH REQUIREMENTS. WHILE YOUR DEPARTMENT'S LETTER OF JULY 28 STATES THAT HEYER HAD NOT SUBMITTED TEST DATA REPORTS ON FIRST ARTICLE, THAT DELAY OCCURRED UNDER A PRIOR CONTRACT. IT DOES NOT NECESSARILY FOLLOW THAT A SIMILAR DELAY WOULD HAVE BEEN ENCOUNTERED IN CONNECTION WITH THE PRESENT PROCUREMENT. NOR DOES IT APPEAR TO HAVE BEEN ADMINISTRATIVELY DETERMINED THAT HEYER OR THE NEXT LOW BIDDER WOULD NOT HAVE MET THE PRODUCTION SCHEDULE SPECIFIED OR THAT SUCH A DETERMINATION WOULD BE JUSTIFIED. SIMILARLY, WHILE IT MAY BE AS CONTENDED IN YOUR DEPARTMENT'S LETTER OF JULY 28 THAT NEITHER LOW BIDDER HAD QUALIFIED ITS PRODUCT, SERIOUS DOUBT EXISTS AS TO WHETHER THE ADVERTISEMENT FOR BIDS PROPERLY MAY BE CONSTRUED AS HAVING CALLED FOR QUALIFIED PRODUCTS OR EVEN AS HAVING BEEN INTENDED TO DO SO. PARAGRAPH 6.2 OF MIL-R-7206 REFERRED TO IN THE LETTER DID NOT EXPRESSLY REQUIRE QUALIFICATION. IT MERELY RESERVED TO THE GOVERNMENT THE RIGHT TO REJECT BIDS ON UNQUALIFIED PRODUCTS "IN THE PROCUREMENT OF PRODUCTS REQUIRING QUALIFICATION. IT MERELY RESERVED TO THE GOVERNMENT THE RIGHT TO REJECT BIDS ON UNQUALIFIED PRODUCTS "IN THE PROCUREMENT OF PRODUCTS REQUIRING QUALIFICATION.' THUS, THAT PARAGRAPH MUST HAVE BEEN INSERTED WITH THE INTENTION THAT IT WOULD APPLY ONLY IN CASES WHERE QUALIFICATION OTHERWISE MIGHT BE SPECIFICALLY REQUIRED; AND, AS HEYER POINTS OUT, NO SUCH REQUIREMENT WAS CONTAINED IN THE INSTANT INVITATION. INDEED, AS HEYER ALSO POINTS OUT, THE PROCEDURE CONSISTENTLY FOLLOWED BY YOUR DEPARTMENT IN THE LETTING OF PRIOR SIMILAR CONTRACTS SHOWS CLEARLY THAT WHENEVER A QUALIFIED PRODUCT WAS INTENDED TO BE REQUIRED, A SEPARATE PROVISION TO THAT EFFECT WAS CONSIDERED NECESSARY AND WAS INCLUDED IN THE ADVERTISEMENT, AND THAT, CONVERSELY, IT HAS BEEN CONSIDERED SUFFICIENT TO CHANGE A PROCUREMENT FROM ONE CALLING FOR A QUALIFIED PRODUCT TO AN UNQUALIFIED PRODUCT PROCUREMENT BY MERELY DELETING SUCH SEPARATE PROVISION TO THAT EFFECT WAS CONSIDERED NECESSARY AND WAS INCLUDED IN THE ADVERTISEMENT, AND THAT, CONVERSELY, IT HAS BEEN CONSIDERED SUFFICIENT TO CHANGE A PROCUREMENT FROM ONE CALLING FOR A QUALIFIED PRODUCT TO AN UNQUALIFIED PRODUCT PROCUREMENT BY MERELY DELETING SUCH SEPARATE PROVISION FROM THE INVITATION WITHOUT REFERENCE TO THE " QUALIFIED TESTS" PROVISION OF THE ACCOMPANYING SPECIFICATIONS. MOREOVER, THE STATEMENT IN THE LETTER OF JULY 28 TO THE EFFECT THAT, AS OF JUNE 18, 1953, FORMAL ACTION TO QUALIFY MCCOLPIN-1CHRISTIE'S PRODUCT "WAS CONTINUING" APPEARS TO CONFIRM HEYER'S CONTENTION THAT THAT COMPANY'S RECTIFIER HAD NOT, IN FACT, BEEN INCLUDED ON THE QUALIFIED PRODUCTS LIST AT THE TIME THE INSTANT PROCUREMENT WAS INITIATED.

ON THIS STATE OF FACTS I HAVE NO ALTERNATIVE BUT TO CONCLUDE THAT THE AWARD AS MADE WAS ILLEGAL. YOU ARE ACCORDINGLY ADVISED THAT THE AWARD SHOULD BE CANCELED.